The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL CASE NO. 5:22-cv-00127-MR
ANTHONY HARRISON MOORE, )
)
Plaintiff, )
)
vs. )
)
FNU MURRAY, et al., ) ORDER
)
Defendants. )
___________________________________ )
THIS MATTER is before the Court on initial review of the Plaintiff’s pro
se Complaint [Doc. 1]. The Plaintiff is proceeding in forma pauperis. [Doc.
8].
I. BACKGROUND
The pro se Plaintiff, who is incarcerated at the Alexander Correctional
Institution, filed this action pursuant to 42 U.S.C. § 1983, complaining about
an excessive force incident that allegedly occurred at Alexander CI on
August 2, 2021.
The Plaintiff names as Defendants in their individual and official
capacities: “Murray FNU,” a unit manager; “Daves FNU,” an assistant unit
manager; “Kale FNU,” a correctional officer; and the North Carolina
Department of Public Safety (NCDPS). [Doc. 1 at 2-3]. He appears to assert
Eighth Amendment claims for the use of excessive force and failure to
intervene.1 [See id. at 3]. The Plaintiff alleges that Defendant Daves tazed
the Plaintiff while he was handcuffed, lying face-down on the floor, and while
Defendants Murray and Kale stood by laughing. [Id. at 4; Doc. 1-1 at 1-3].
He claims that he sustained “injuries to [his] whole body from being tazed,”
including the inability to feel his arms and legs, headaches, and the loss of
eyesight, and that a nurse said that “nothing could be done” for his injuries.
[Id. at 5]. He seeks a declaratory judgment, injunctive relief, and
compensatory damages. [Id.].
II. STANDARD OF REVIEW
Because the Plaintiff is proceeding in forma pauperis, the Court must
review the Complaint to determine whether it is subject to dismissal on the
grounds that it is “frivolous or malicious [or] fails to state a claim on which
relief may be granted.” 28 U.S.C. § 1915(e)(2). Furthermore, under § 1915A
the Court must conduct an initial review and identify and dismiss the
complaint, or any portion of the complaint, if it is frivolous, malicious, or fails
1 The Plaintiff cites “Fourteenth Amendment and Due Process,” which is the excessive
force standard applicable to pretrial detainees. [Doc. 1 at 3]; see Graham v. Connor, 490
U.S. 386, 395 n.10 (1989). Because the Plaintiff is a convicted and sentenced state
prisoner, his excessive force claims arise under the Eighth Amendment.
to state a claim upon which relief may be granted; or seeks monetary relief
from a defendant who is immune to such relief. 28 U.S.C. § 1915A.
In its frivolity review, this Court must determine whether the Complaint
raises an indisputably meritless legal theory or is founded upon clearly
baseless factual contentions, such as fantastic or delusional scenarios.
Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). Furthermore, a pro se
complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520
(1972). However, the liberal construction requirement will not permit a
district court to ignore a clear failure to allege facts in his Complaint which
set forth a claim that is cognizable under federal law. Weller v. Dep’t of Soc.
Servs., 901 F.2d 387 (4th Cir. 1990).
III. DISCUSSION
To state a claim under § 1983, a plaintiff must allege that he was
“deprived of a right secured by the Constitution or laws of the United States,
and that the alleged deprivation was committed under color of state law.”
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).
A. Parties
The Plaintiff attempts to name NCDPS as a Defendant, and to sue the
correctional Defendants in the individual and official capacities. However,
“neither a state nor its officials acting in their official capacities are ‘persons’
under § 1983.” Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989).
Therefore, NCDPS is not a “person” under § 1983. See Fox v. Harwood,
2009 WL 1117890, at *1 (W.D.N.C. April 24, 2009). Further, because a state
is not a “person” under § 1983, state officials acting in their official capacities
cannot be sued for damages thereunder. Allen v. Cooper, No. 1:19-cv-794,
2019 WL 6255220, at *2 (M.D.N.C. Nov. 22, 2019). Furthermore, the
Eleventh Amendment bars suits for monetary damages against the State of
North Carolina and its various agencies. See Ballenger v. Owens, 352 F.3d
842, 844-45 (4th Cir. 2003). As such, Plaintiff’s claims against NCDPS, and
against the Defendants for damages in their official capacities, do not survive
initial review and will be dismissed.
B. Excessive Force
The Eighth Amendment prohibits the infliction of “cruel and unusual
punishments,” U.S. CONST. Amend. VIII, and protects prisoners from the
“unnecessary and wanton infliction of pain.” Whitley v. Albers, 475 U.S. 312,
319 (1986). The Eighth Amendment therefore protects prisoners from
inhumane methods of punishment and from inhumane conditions of
confinement. Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). To
establish an Eighth Amendment claim, an inmate must satisfy both an
objective component—that the harm inflicted was sufficiently serious—and
subjective component—that the prison official acted with a sufficiently
culpable state of mind. Williams, 77 F.3d at 761. In adjudicating an
excessive force claim, the Court must consider such factors as the need for
the use of force, the relationship between that need and the amount of force
used, the extent of the injury inflicted, and ultimately, whether the force was
“applied in a good faith effort to maintain or restore discipline, or maliciously
and sadistically for the very purpose of causing harm.” Whitley, 475 U.S. at
320-21.
The Fourth Circuit recognizes a cause of action for bystander liability
“premised on a law officer’s duty to uphold the law and protect the public
from illegal acts, regardless of who commits them.” Stevenson v. City of
Seat Pleasant, Md., 743 F.3d 411, 416-17 (4th Cir. 2014) (quoting Randall v.
Prince George’s Cnty., 302 F.3d 188, 203 (4th Cir. 2002). A “bystander
officer” can be liable for his or her nonfeasance if he or she: “(1) knows that
a fellow officer is violating an individual’s constitutional rights; (2) has a
reasonable opportunity to prevent the harm; and (3) chooses not to act.”
Randall, 302 F.3d at 204.
Taking the Plaintiff’s allegations as true for the purposes of this initial
review and drawing all reasonable inferences in his favor, the Plaintiff’s
Eighth Amendment claims based on the use of excessive force and failure
to intervene survive initial review as not clearly frivolous.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that the Plaintiff’s
Eighth Amendment claims have passed initial review against Defendants
Kale, Daves, and Murray in their individual capacities. The claims against
NCDPS, and the claims against the Defendants in their official capacities are
dismissed with prejudice.
ORDER
IT IS, THEREFORE, ORDERED that:
1. The Plaintiff’s Eighth Amendment claims have passed initial review
against the Defendants Kale, Daves, and Murray in their individual
capacities.
2. The claims against NCDPS and the claims against the Defendants
in their official capacities are DISMISSED WITH PREJUDICE.
3. IT IS FURTHER ORDERED that the Clerk of Court shall commence
the procedure for waiver of service as set forth in Local Civil Rule
4.3 for Defendants Kale, Daves, and Murray, who are alleged to be
current or former employees of the North Carolina Department of
Public Safety.
The Clerk is respectfully instructed to mail the Plaintiff an Opt-In/Opt-
Out form pursuant to Standing Order 3:19-mc-00060-FDW.
IT IS SO ORDERED.
Signed: January 3, 2023
a if
< Reidinger ey
Chief United States District Judge MS